Terms in a franchise agreement are sometimes for several
\n open to interpretations. By ruling of March 19, 2020, the
\n Preliminary Relief Judge of the Overijssel District Court, location Almelo, in more detail
\n on the interpretation of a franchise agreement and whether unilateral
\n change on the part of the franchisor was allowed or not.<\/p>\n
\n Facts<\/u>
\n \n<\/p>\n
\n Central to the discussion was the question of whether it was the franchisor
\n permitted certain announced changes\/adaptations to the formula
\n to be implemented on the basis of the agreement between the parties
\n franchise agreement.\n<\/p>\n
\n The franchisees believed that it was up to the franchisor
\n under the franchise agreement was not permitted unilaterally
\n to implement announced changes without the consent of the
\n franchisees. The franchisor argued that it was authorized to do so
\n to implement the proposed changes, including as an argument
\n that the proposed changes were necessary for the formula and the
\n franchisees no, at least a limited, disadvantage from those changes
\n would experience.
\n \n<\/p>\n
\n The assessment<\/u>
\n \n<\/p>\n
\n The question of whether the franchisor is allowed \u2013 in view of the provisions in
\n the franchise agreement \u2013 \u200b\u200bthe announced changes across the formula
\n should be answered in the light of the contractual
\n agreements regarding formula changes in conjunction with the others
\n provisions of the franchise agreement, according to the judge.\n<\/p>\n
\n From the provision that the franchisor is permitted to apply the franchise formula
\n to change and develop further, could not be done without further ado in this case
\n deduced that changes can be implemented further than the
\n franchise agreement offers the opportunity, unless this happens with
\n permission from the franchisees. The articles do
\n franchisor has the freedom to adjust the formula, but from there
\n does not follow that a unilateral additional increase\/adjustment is also subject to that
\n provision falls. If it was the franchisor’s intention to
\n such change unilaterally – therefore without the consent of the
\n franchisees \u2013 had this explicitly stated in the
\n franchising agreement. Now this not in the
\n franchise agreement is included, no
\n (additional) unilateral right to amend.
\n \n<\/p>\n
\n As to whether the proposed changes were necessary
\n for the continuity of the franchisor and that no (or limited)
\n would have an impact on the turnover and\/or profit margin of the franchisee,
\n the preliminary relief judge comes to the conclusion that this is not in short
\n case can be determined. The question of whether the franchisor pursuant to
\n the alleged (unforeseen) circumstances would be entitled to unilateral
\n to make changes to the franchise agreement requires further investigation
\n investigation of the facts and provision of evidence, for which preliminary relief proceedings are not suitable
\n is.
\n \n<\/p>\n
\n The preliminary relief judge therefore comes to the conclusion in the present interlocutory proceedings
\n judges that the franchisor is not allowed to make purchases and
\n selling price changes without the consent of the franchisees
\n feed. All other claims of the franchisees are rejected.
\n \n<\/p>\n
\n Conclusion<\/u>
\n \n<\/p>\n
\n The Court in preliminary relief proceedings makes it clear once again that for the answer
\n of the question of how to interpret the franchise agreement, it is not
\n purely concerns the linguistic interpretation of the provisions in the agreement,
\n but also the sense that the parties in the
\n given circumstances, it is reasonable for both parties to comply with these provisions
\n and what they could reasonably expect from each other.
\n This once again underlines the importance of the Haviltex standard.\n<\/p>\n
\n This statement also makes it clear that the unilateral implementation of
\n changes even in these uncertain times (for example because some things
\n is necessary for the continuity of the formula) but not without further ado
\n is permitted, unless expressly stated in the franchise agreement
\n possibility.
\n \n<\/p>\n
\n This statement illustrates once again how important it is to
\n franchise relationship, both from franchisors and from
\n franchisee perspective, on the basis of a clear and
\n unambiguously worded franchise agreement.
\n \n<\/p>\n
\n mr. K. Bastiaans \u2013 franchise lawyer\n<\/p>\n